Different Comparators

Labour & European Law ReviewWeekly Issue 43502 September 2015

Claimants have to show they were treated less favourably in comparison to someone else when claiming direct discrimination. In CP Regents Park Two Ltd v Ilyas, the Employment Appeal Tribunal (EAT) held that it may be necessary to have different comparators if there is both an investigatory and a disciplinary hearing, although that will depend on the tribunal’s findings.

Basic facts

Mr Ilyas, who is of Pakistani origin, worked as a receptionist in a hotel owned by CP Regents Park Two Ltd. After his colleague, Mr Ahmed (who is also of Pakistani origin) was dismissed for fraud, Mr Ilyas was asked to a meeting at which he was accused of colluding with Mr Ahmed and of benefitting from the fraud.

Mr Ilyas was asked at the meeting if he had known Mr Ahmed when they were both in Pakistan. The company also interviewed other reception staff but did not ask anyone else this question. Mr Ilyas was also the only person who was asked to attend a disciplinary hearing, after which he was summarily dismissed. He brought claims for unfair dismissal and race discrimination.

Tribunal decision

The tribunal held that the meeting with Mr Ilyas prior to the disciplinary hearing had been conducted in an unduly aggressive and inappropriate manner, and was indicative of the fact that the company had pre-judged the outcome of the investigation.

It concluded that Mr Ilyas had suffered less favourable treatment because of his race. It drew particular attention to the fact that the company had made a connection between Mr Ilyas and Mr Ahmed (whether consciously or unconsciously) because of their shared nationality and/or race. As such the nature of the investigatory meeting was directly discriminatory. Likewise, disciplining Mr Ilyas constituted less favourable treatment as it was also based on the suspected link with Mr Ahmed’s race or nationality.

On the other hand, the tribunal did not find that the decision to dismiss Mr Ilyas was tainted by race/nationality and rejected his unfair dismissal claim. It distinguished between the conduct of the investigatory meeting and the information obtained as a result; the latter being “sufficient and thorough” such that “it was reasonable for [the company] to rely on [it]”

The company appealed against the tribunal’s findings of race discrimination.

EAT decision

The EAT dismissed the company’s appeal with regard to the nature of the investigatory meeting, holding that it was open to the tribunal to find that the questioning was “unduly aggressive and inappropriate”. The tribunal had then correctly gone on to consider the treatment of the comparators (the other receptionists questioned at the investigation stage) and found that the line of questioning was different. Although there were differences between Mr Ilyas and his comparators, they were not “material”.

Given the evidence, the tribunal reached a permissible conclusion as to the manner of the meeting. Having done so, it was entitled to ask why the meeting had been conducted in the way it found it had. It concluded that the company had failed to provide an explanation other than race/nationality. That was a permissible conclusion and was not one with which the EAT could interfere.

However, the EAT did allow the company’s appeal with regard to the tribunal’s conclusion that referral of Mr Ilyas into the disciplinary process also constituted less favourable treatment. At that point, the comparator should have been another employee who had failed to provide adequate, exculpatory responses to the allegations. As the tribunal lost sight of this fact when assessing whether this decision amounted to an act of race discrimination, its conclusion on this point could not stand.